MARSHAL: LADIES ANDGENTLEMEN, THE FLORIDASUPREME COURT.YOU MA Y BE SEATED.

CHIEF JUSTICE: GOOD MORNING ONCE AGAIN AND WELCOME TO THE FLORIDASUPREME COURT . WE HAVE THIS MORNING, ASPECIAL CASE ON OUR DO CKET , AND FOR THOSE THAT WILL BE VIEWING THIS ORAL ARGUMENT AT A LATER DATE , THIS IS THE 2006 FL ORIDA HIGH SCHOOL MOOT COURT APPE LLATE COMPETITION, AND THIS CONSISTED OF TEAMS FROM AROUND THE STATE , AND WE HAVE, TO DAY , THE TWO FINALISTS AND THIS IS PART OF THE SUPREME COURT'S LAWWEEK PROGRAM, SO WITH THAT I AM GOING TO CA LL THE FIRST CASE ON THE COURT'S CALENDAR FOR THIS S PECIAL ORAL ARGUMENT, AND IT IS THESTATE O F FLO RIDA PETITIONER , V ERSUS J AMIE O LSEN , RESPONDENT. ARE THE PART IES READY ? ALL RIGHT.WELL , YOU MAY PROCEED. MS. WADE.

MAY IT PLEASE THE COURT. MY NAME IS KATHLEEN WADE , AND I, A LONG WITH MY COCOUNSELOR , NICOLA MENCHETTI , HAVE TWO APPE ALS BEFORE THE COURT. THE SECOND IS THE IMPOSITION OF A SENTENCE UNDER THE CRIMINAL ACT OF 2 004 , VIOLATE ED THE RESPONDENT'S FIFTH AMENDMENT RI GHTS. THE STATE AS KS YOU TO HO LDON THE FIRST ISS UE AND REVERSE ON THE SECOND ISSUE.

JUSTICE: WOULD YOU GIVE US A THUMBNAIL SKETCH OF THE UNDERLYING CIRCUMSTANCES UNDER WHICH THIS CASE ARE A ROWS.

YES . JAMIE OL SEN IS CONVICTED A M URDER AND WHILE INVESTIGATING , THE UNDERCOVER AGENT JUAN RODRIGUEZ WAS S HOT AND KILLED BY AN EMPLOYEE. ON THE DAY OF HIS MURDER, THE L OCAL UP IN, THE DEERFIELD GAZ ETTE -- THE LOCAL NEWSPAPER , THE DEERFIELD GAZETTE , PUBLISHED HIS PICTURE. DURING THE INVESTIGATION , THE PRINCIPAL AUTHOR S H OWED JAMIE OLSEN A S THE CONTRIBUTING W RITER . DURING SENTE NCING THE JUDGE ADDED AN ADDITIONAL FIVE YEARS ON TO MR . OLSE N'S SENTENCE AS HE VIOLATED THE CRIMINAL ACT.

CHIEF JUSTICE: YOU ARE GOING TO AD DRESS THE FIRSTAMENDMENT ISSUE?

YE S, YOUR HO NOR. UNDER FLORIDA STATUTE 90.5015 , AND THE 3-PR ONG TEST USED I N THE STATE VERSUS DAVIS, DETERMINES SITUATIONS , TH REE SETS OF THIS TEST AS FOLLOWS. FIRST , THAT THE INFORMATIONIS RELEVANT , SECOND THAT IT IS UNATTAINABLE FROM ALTERNATIVE SO URCES AND THIRD , A COMPELLING INTEREST WHICH REQUIRES DISCLOSURE . BECAUSE MR. OLSEN'S INFORMATION , THE IDENTITY IS A CONFIDENTIAL SOURCE , ALLTHREE OF THESE REQUIREMENTS DOES NOT HAVE A QUALIFIED REPORTER AND THEREFORE HIS FIRST AMENDMENT RIGHTS WERE NOT VI OLATED.

CHIEF JUSTICE: WERE THERE TRIAL COURT FINDINGS A S TO THESE THREE PRONGS OF THE QUALIFIED PRIVILEGE REQUIREMENT?

THE TRIAL COURT FOUND THAT MR . OLSEN DID NOT APPLY THE 3-PRONG TEST OF SILENCE.

CHIEF JUSTICE: THE APPELLATE COURT, HO W DID THEY HANDLE THIS ISSUE? HOW DID THEY DI FFER FROM YOUR POSITION?ANOTHER APPELLATE COURT CONFIRMED THE CONVIC TION. THEY AG REED THAT MR . OLSENDID NOT HAVE PRIVILEGE.

CHIEF JUSTICE: SO YOU ARE REALLY, FROM THE PO INT OF VIEW OF THE STATE, YO U ARE ASKING FOR US TO UP HOLD THE FIFTH DISTRI CT COURT OF APPEAL OPIN ION.

YES, YOUR HON OR.

CHIEF JUSTICE: I GUESS I AM A LITTLE CONF USED. WHY ARE YOU THE PET ITIONER HERE THEN?

THIS IS THE WAY THE MOOT COURT SET IT UP .

JUSTICE: YOU ARE ASKING US TO REVERSE ON THE SECOND ISSUE, SO YOU ARE A PETITIONER APPEALING ON THE SECOND ISSUE, THE APPRENDI ISSUE , RIGHT?

YES , YOUR HONOR . NOW , AS TO HOW THE TEST APPLIES TO MR. OLSEN'S INFORMATION. THE INF ORMATION IS UNDENIABLY RELEVANT. THE GRAND JU RY WAS INVESTIGATING THE MURDER OF AN UNDERCOVER AGENT WHO HAD BEEN KILLED AND HIS I D ENTITY HAD BEEN REVEALED BY AN ARTICLE IN THE UP IN. IT -- IN THE NEWSPAPER. IT WAS IMPERATIVE THAT THEGRAND JURY K NOW THE ORIGINAL SOURCE OF THAT INFORMATION.

CHIEF JUSTICE: WHETHER HE WAS K ILLED BECAUSE OF THE REVELATION IN THE NEWSPAPER, THAT SOMETHING THAT HAD TO BE ALLEGED AND PROVED, OR ARE WE TO TAKE THAT AS BEING TRUE, BEFORE THAT INFORMATION , BEFORE THEGRAND JURY COULD HAVE OBTAINED THAT INFORMATION? IN OTHER WORDS, WHAT IF THE , WHAT IF THERE WAS EVIDENCE THAT THE PERSON WHO DID THE A CTUAL CR IME DID NOT OBTAIN THE INFORMATION FROM THE NEWSPAPER BUT OBTAINED IT FROM AN OTHER SOURCE?

IF THERE WAS DI RECT EVIDENCE PROVING THAT , THEN THERE MAY NOT NECESSARILY HAVE BEEN RELEVANT TO THIS CASE, BUT THERE WAS EVIDENCE FOUND AT THE CRIME SC ENE SUGGESTS ITS INVOLVEMENT IN THE CRIME.

CHIEF JUSTICE: S O YOU RELIED HEAVILY ON THE CONNECTION WITH THE NEWSPAPER , BECAUSE OF THE CRIME SCENE EVIDEN CE OF THE NEW SPAPER .

YES, YOUR HONOR . NOW , THIS INFORMATION WAS ALSO UNOBTAINABLE FROM ALTERNATIVE SOURCES. THE ONLY TWO PEOPLE THAT THIS INFORMATION WOULD HAVE BEEN AVAILABLE TO IS JAMIE O LSEN , THE TWO PEOPLE WHO WORKED ON THIS ARTICLE. MS. LANE WAS HELD IN CONTEMPT AND THEREFORE JAMIE OLSEN WAS THE ONLY REMAINING SOURCE.

JUSTICE: IF WE APPR OVE THIS HOLDING , ISN'T THERE A G REAT DANGER THAT SUCH A RULE WOULD BE ABUSED IN THE FUTURE? THAT IS THAT IT WOULD BE EXTENDED TO ALL KINDS OF SITUATIONS?

IS YOUR HONOR REFERRING TO THE ABUSING A QUALIFIED REPORTER NOT BEING APPLICABLE AS OTHER?

YES .

WELL , THE THIRD AND FINAL S TEP ADDRESSES THAT. IT STATES THAT A COMPELLING INTEREST HA S TO BE ESTABLISHED , WHICH OVERCOMES ANOTHER COMPELLING INTEREST, AND THAT COMPELLING INTEREST IS THE FREE FLOW OF PRESS AND THAT IS IN F ACT WHY THE QUALIFIED RE PORTER STATUTE WAS CREATED , TO PROTECT A RELATIONSHIP BETW EEN A CONFIDENTIAL SOURCE AND A REPORTER WHO DISTRIBUTESTHAT INFORMATION TO THE PUBLIC.

CHIEF JUSTICE: HOW DO YOU DISTINGUISH THIS CASE FROMTHE CASE OF MORGAN VERSUS STATE OF FLORIDA?

IN MO RGAN VER SUS STATE, THERE WAS NO CRIMINAL INVESTIGATION GOING ON . THEREFORE THE COMPELLING INT EREST WAS LESS THAN THE STATE'S INTEREST . HOWEVER, IN THIS SITUATION , T HERE WAS A CRIMINAL INVESTIGATION.

CHIEF JUSTICE: IS THIS , DO YOU RELY ON STATE VERSUS DAVIS OUT OF THIS COURT , IS THAT SUPPORT YOUR ARGUMENT?

STATE VERSUS DAVIS, I BELIEVE , STATED THAT THERE , IN STATE VERSUS DAVIS , THEY FAILED TO SH OW THAT THE INFORMATION WAS UNOBTAINABLE FROM ALTERNATIVE SOURCE S, I BELIEVE , AND IN THIS CASE THAT IS NOT WHAT HAPPENED.

JUSTICE: SO IS I T YOUR POSITION THAT , ANY TIME THERE IS A CRIMINAL INVESTIGATION, THAT THAT M EANS THAT THERE I S , WITHOUT ANY F URTHER EVALUATION , THAT MEANS THERE IS A QU ALIFIED PRIVILEGE.

WELL , THAT DECISION DOESN'T REALLY HAVE TO BE ADDRESSED THIS THIS CASE, BECAUSE THE CRIMINAL INVESTIGATION THAT WAS GOING ON, WAS INVESTIGATING ACRIME SO HEINOUS , THE MURDER O F AN UNDERC OVER AGENT , THAT IT IS SO FAR ABOVE THE LINE OF WHETHER CRIMINAL INVESTIGATIONS ARE GOING ON OR NOT, THAT IT WOULD MOST CERTAINLY BE INCLUDED IN THAT AREA .

JUSTICE: OF WHAT IMPORT IS IT TO US THAT THE LE AD REPORTER JUST REFUSED TO TESTIFY AND WAS HELD IN CONTEMPT, SO APPARENTLY THERE MUST BE ANOTHER SOURCE OF INFORMATION AVAILABLE?

WELL , THE LEAD REPORTER PRETTY MUCH DISQUALIFIED HERSELF AS A SOURCE OF INFORMATION, IF SHE WAS COMPLETING REFU SING TO ANSWER THE GRAND JURY SUBPOENA AND WAS BEING HELD IN CONTEMPT AT THAT TIME, SO MR . OLSEN WAS THE ONLY REMAINING SOURCE, AND HE DID HAVE THIS INFORMATION FOR THE GRAND JURY. I BE LIEVE MY TIME IS UP.

CHIEF JUSTICE: THANK YOUVERY MUCH. MS. MENCHETTI.

MAY IT PLEASE THE COURT. MY NAME IS N ICOLA MENCHETTI , AND I WILL BE REQUESTING FORTHE ENHANCEMENT OF THE SENTENCE UNDER THE CRIMINAL ACT OF 2 004 VI OLATED THE RESPONDENT JAMIE OLSEN 'S SIXTH AMENDMENT RIGHTS. TODAY WE RESPECTFULLY REQUEST THAT UP HOLD THE RULING OF THE TR IAL COURT AND REVERSE THE R ULING O F THE FI FTH DISTRICT COURT THAT THIS ENHANCEMENT IS INVALID. JAMIE OLSEN WAS CONVICTED AS A PRINCI PLE TO THE MU RDER OF J UAN RODRIGUEZ , NOT BECAUSE HE P ULLED THE TRIGGER BUT BECAUSE OF HIS GROSS CARELESSNESS IN THE HA NDLING OF CONFIDENTIAL INFORMATION.

CHIEF JUSTICE: WELL , NOW , THAT WOULD HAVE TO BE , WAS THAT A JURY FINDING , ANDISN'T THAT THE ISSUE H E RE AS TO WHETHER THE JURY ACT UALLY FOUND THAT HE WAS GR OSSLY NEGLIGENT?

THE RE CORD IS SILENT AS TO EXACTLY WHAT THE SPECIFIC CHARGES WERE AG AINST JAMIE OLSEN. THE ONLY THING THAT WE HAVE BEEN TOLD IN THE RECORD IS THAT HE WAS THE PRINCIPLE TO THE MU RDER , AND WHAT THAT ENCOMPASSES IT IS NOT CLEAR , B UT IN ORDE R TO M AKE THE CONVICTION, THE JURY HAD TO CONCLUDE THAT H E ABUSED HIS POSITION AS A MEMBER OF THE MEDIA , IN ORDER TO CONVICT HIM. OTHERWISE THERE WOULD HAVE BEEN NO CONVICTION , B ECAUSE HE HIMSELF , DID NOT KILL A GENT JUAN RODRIGUEZ, BUT IT WAS THROUGH THE REVEAL ING OF JUAN ROD RIGUEZ IN THE NEWSPAPER AR TICLE KEL -- ARTICLE AND PHOTOGRAPH , ASWELL AS THE IMPLICATION OF THE SHOOTER THAT SUBSEQUENTLY LE D TO THECRIME.

CHIEF JUSTICE: BUT SHOULDN'T IT B E UPON THE STATE THAT ENHANCED SEC URITY , WITH JURY FIND INGS ON THESEISSUES, RATHER THAN LEAVING TO TO SUP POSITION AND I S N'T THAT THE WHOLE TENOR OF THE U.S. SUPREME COURT CASE S?

YES. IN APPR ENDI OUT O F NEW JERSEY, IT STATES THAT ANY ENHANCEMENT OF THE SENTENCE M UST BE CON CLUDED BEFORE THE FACTS PRES ENTED BEFO RE THE JURY. IN THIS CASE ALL OF THE FAC TS NECESSARY TO CONCLUDE HIS ABUSE O F DISCRETION AS A REPORTER WERE BEFORE THEJURY AND THE JUDGE ONLY USED THE ENHANCEMENT A FT ER HE CONSIDERED THE JURY'S FINDINGS AND NOT ON THE FACTS THAT WERE NOT PRESENTED BEFORE THE JURY. FURTHERMORE , IN BELL VERSUS STATE , 898 SO.2D 2 17 OF 20 05 , IT INTERPRETS THE APPRENDI RULING ON THE STATE LE VEL , IN ACCORDANCE WITH THE DUE PROCESS CLAUSE.NOW , IN BELL VERSUS STATE , THERE WERE TWO ISSUES AT HAND, JUST AS THERE ARE HERE , EXCEPT IN BELL, THE ISSUETHAT WAS IN Q U ESTION WAS ABOVE THE CHARGE THAT WAS THE IN ITIAL CHARGE AGAINST THE SE XUAL OFFENDER. IN THIS CASE , BOTH CARELESSNESS AND THE NEGLIGENCE ON BE HALF OF JAMIE OLSEN I S EMBODIED AND INHERENT IN THE JURY'S CONVICTION, AND THEREFORE I T DOES NOT APPLY. FURTHERMORE , BELL ESTABLISHES A TWO-ISSUE RULE THAT, WHEN APPL IED TO THIS CASE, SHOWS THAT BECAUSE JAMIE OLSEN AT THE TIME OF HIS INI TIAL JURY TRIAL , DID NOT REQUEST A SP ECIFIC FINDING IN ACCORDANCE TO HIS A CTIONS AS A REPORTER. HE WAIVED HIS RIGHT TO CONTEST THESE ISSUES AF TER THE SENTENCE HAS BEEN G IVEN.

CHIEF JUSTICE: NOW, WHE REIS THAT IN THE CASE L AW, THAT IS THAT IT IS , THE BURDEN IS ON THE DEFENDANT WHO REQU ESTS A SPECIAL JURY INSTRUCTION, AS OPPOSE OPPOSED TO -- A S OP POSED TO ON THE STATE TO MAKE SURE THE REQUIS ITE FINDING ARE IN THE RECORD.ARE YOU SAYING THAT COMESFROM THE BELL DECISION?

THE BELL IS A TWO-ISSUERULE, AND IT CAN BE CAN CONCLUDED BETW EEN BELL AND THIS CASE , THAT BECAUSE THE TWO ISSUES IN THIS CASE WITH JAMIE OLSEN WERE IN HERENT IN THE JURY'S FINDINGS, THAT IT WAS NOT OUTSIDE OF THE SCOPE. HOWEVER, IN BELL , ADDITIONAL FINDINGS WAS OUTSIDE OF THE SCOPE THAT WAS PRESENTED FOR THE JURY, AND THAT IS WHY IT WAS THE STATE'S RESPONSIBILITY, BUT IN THIS CASE THE STATE DID PROVE BEYOND A REASONABLE DO UBT THE NEGL IGENCE ON JAMES OLSEN'S CASE AND THAT IS W HY IT APPLIES HERE. FURTHERMORE, QUESTI ONS ARE A RAISED IN BLAKELY VERSUS WASHINGTON AND THE UN ITED STATES VERSUS BOOKER, AS TO WHAT CONSTITU TES A STATUTORY MAXIMUM SENTENCE . THERE IS TH REE CRI TERIA WHICH MUST BE MET IN ORDER TO APPLY ADDITIONAL SENTENCING ABOVE THE MAXIMUM.ONE , F ACTS PRESENTED FOR THE JURY. TWO , ADMISSIONS BY THE DEFENDANT, AND, THREE , THE DEFENDANT'S PRIOR CONVICTIONS . IF ANY ON E OR MORE O F THESE CRI TERIA APPLY, THEN AN ENHANCED SENTENCE IS CONSTITUTIONAL UNDER THE DUE PROCESS CL AUSE, EVEN ON THE STATE LEVEL. IN THIS CASE , FACTS PRESENTED BEFORE THE JURY WERE THAT JAMIE LEE OLSEN ABUSED HIS POSITION AS AMEMBER OF THE MEDIA , IN ORDER TO F URTHER HIS C L IENT AGAINST JUAN RODR IGUEZ . -- HIS CRIME AGAI NST JUAN RODRIGUEZ.

JUSTICE: THE SPECIFIC CRIME THAT HE WAS CONVICTED HERE WAS MU RDER?

PRINCIPLE TO THE MU RDER. YES.

JUSTICE: IS THE FACTOR THAT WAS USED FOR ENHANCEMENT AN ELEMENT OF THE MURDER ?

YES, YOUR HONOR. INHERENT IN THE JURY 'S FINDINGS IS THE FACT THAT THERE WAS A VI OLATION , WELL , IT WAS THE FACT THAT JAMIE OLSEN ABUSED HIS POSITION AS A MEMBER OF THE MED IA AND THERE FORE HE MADE AN OFFENSE TO THE CRIMINAL ACT OF 2004. THE JURY COULD NOT HAVE MAD E THE CONVICTION OF GUILTY, UNLESS FINDING THIS VIOLATION OF THE CRIMINAL PRESS ACT , BECAUSE JAMIE OLSEN DID NOT KILL JUAN RODRIGUEZ , HIMSELF. IT WAS THROUGH HIS HANDLING OF THE INFORMATION AND OBTAINING HIS INFORMATION, THAT THIS CHARGE WAS MADE .

JUSTICE: BUT THE MURDER ITSELF, THE ELEMENTS OF MURDER ARE KILLING SOMEONE THROUGH SOME CRIMINAL ACTIVITY. THE DEATH OF A PER SON THROUGH CRIMINAL ACT IVITY . AND THIS MR . OLSEN WAS CONVICTED BECAUSE HE HAD A N ASSOCIATION WITH THE ACTUAL KILLER , CORRE CT?

HE WAS CONVICTED AS A PRINCE TELL PE L TO THE MURDER -- AS A PRINCIPLE TO THE MURDER, BASED ON FACTS PRESENTED BY THE PROSECUTIONAT THAT TIME THAT IN CLUDED HIS CONNECTION WITH THEMURDERER, A S WELL AS HIS HAN DLING OF CONFIDEN TIAL INFORMATION.

JUSTICE: SO IF THE JURY BELIEVED THAT THE KILLER ACTUALLY, THAT THE PERS ON WE BELIEVE WAS THE KILLER ACTUALLY COMMITTED THIS MURDER AND THAT MR . OLSEN HAD A RELATIONSHIP WITH HIM , WOULDN'T THAT BE EN OUGH JUST TO SUPPORT THE MURDER CONVICTION, WITHOUT ANY REFERENCE TO WHETHER OR NOT HE USED THE FREE PRESS ?

THAT WOULD HAVE BEEN ENOUGH , HAD MR . JAMIE OLSEN'S POSITION AS REPORTER NOT BEEN RELE VANT TO THE CASE, BUT BECAUSE HE HAD THE EXTRA DUTY AND RESPONSIBILITY AS REPORTER AND BECAUSE HE HAD PARTICIPATION, THIS UNDERLYING FACTOR IS IN THE CHARGE.

CHIEF JUSTICE: ARE YOU S AYING THAT THE STATEINTRODUCED ALTERNATIVE BASIS FOR HIS ASSOCIATION WITH THE KILLER, NOT ONLY THE FACT THAT THE RELATIONSHIP HADALSO , THE, THAT THE NEWSPAPER WAS FO UND CLOSE TO --

THAT WAS THE BASIS OF THE PROSECUTION'S CASE, AS REVEALED IN THE RECORD ON APPEAL.

JUSTICE: BUT IS AN ALTERNATIVE BASIS ENO UGH? DOESN'T APPRENDI REQUIRE THAT THERE ACTUALLY HAS TO BE THAT CHARGE, AND THEN THAT CHARGE FOUND BY A JURY , IN ORDER FOR IT TO BE USED AS A BASIS TO ENHA NCE THE SENTENCE? HAVING AS AN ALTERNATIVE BASIS , WHERE WE DON'T K NO W WHAT BASIS THE JURY REL YING ON IT IS NOT ENOUGH , IS IT?

IT IS ENOUGH IN THIS CASE , BECAUSE IT IS INH ERENT IN THE JURY'S VERDICT. IF IT HAD NOT BEEN , IF IT HAD BEEN IN FACTS AFTERWARDPRESENTED TO THE JURY THAT THIS PERSON WAS ALSO AMEMBER OF THE MEDI A AND THAT IS WHAT IS COMING TO THE REALIZATION OF THE JU DGE A FTER THE INITIAL SENTENCE,THEN, YES , APPRENDI WOULDN'T APPLY, BUT IN THIS CASE IT DOES, BUT I HAVE BEEN NOTIFIED THAT MY TIME IS U P. THANK YOU.

CHIEF JUSTICE: THANK YOU V ERY MUCH. ALL RIGH T. WE WILL GO WITH THE RESPONDENT . WE HAVE TWO JESSICAS HERE , SO JE SSICA BO UIS .

GOOD AFTERNOON.MY NAME IS JESSICA BOUIS. I WILL ADDRESS THE FIRSTISSUE , WHICH IS WHE THER OR NOT FIRST AMENDMENT , A FLORIDA RESPONDENT , DISCLOSED THE IDENTITY OF A CONFIDENTIAL SOURCE. IN SU M WE ASK THIS COURT TO REVERSE THE LOWER COUR T'S DECISION. IT IS VITAL TO ACCEPT THAT A QUALIFIED REPORTER 'S PRIVILEGE EXIST S. HOWEVER IT IS NOT ABSOLUTE. ONE CANNOT BLANKET THE JUSTICE SYSTEM, CLAIMING THAT REPORTERS SHOULD NEVER REVEAL THEIR SOURCES OR THAT THEY SHOULD AL WAYS REVEAL THEIR SOURCES , WHI CH IS WHY BALANCING TESTS HAVE BEEN MADE THROUGH CASE LAW. THE B A LANCE ING CASE WAS CODIFIED THROUGH FLORIDA STATUTE LEGISLATION. THE STATUTE SPECIFIES THAT THE PARTY SEEKING TO OVERCOME THE PRIVILEGE MUST MAKE A CL EAR AND OVERWHELMING CASE THAT I T IS RELEVANT AND MATERIAL TO THE CASE AT HAND AND, TWO , THE INFORMATION IS NOT OBTAINABLE THROUGH OTHER SOURCES AND THR EE, THERE IS A COMPELLING NEED FOR THIS INFORMATION.

JUSTICE: WHY WAS THERE A COMPELLING NEED IN THIS CASE?

ACTUALLY I BEL IEVE IN THIS CASE THERE WAS NOT A COMPELLING NEED FOR THIS INFORMATION.I CAN CONC EDE THAT THE FIRSTPRONG IS RELEVANT BECAUSE THE SOURCE WAS RELEVANT TOWARDS THE INVESTIGATION. HOWEVER , THE RE WAS NO SPECIFIC COMPELLING NEED ATTHE TIME. ONE, THEY WERE ASKING JAMIE OLSEN TO DIS CLOSE HIS CONFIDENTIAL SOURCE . THE THIRD PRONG , BASICALLYTHE PETITIONER S ARGUED IN THEIR BRIEF THAT JAMIE OLSEN'S INFORM UATION WAS REQUIRED FOR THE GRAND JURY TO COMP LETE THEIR GRAND JURY INVESTIGATION. HOWEVER , THAT WAS THE COMPELLING NEED , YET THEY ARE SPECULATING THAT JAMIE OLSEN WAS THE ONLY ANSWER. HOWEVER , ONLY IN THE GRAND JURY E ARLY STAGES, THEY S HOULD HAVE BEEN ABLE TO USEALL THEIR SOURCES . YET THERE WAS ONLY A HONING IN COMPLETELY ON JAMIE OLSEN. IF JAMIE OLSEN HAD BEEN MADE AWARE THAT HE WAS THE PRIMARY TARGET, THE N HE SHOULD HAVE BEEN NOT IFIED THAT, AS HE SHO ULD, HAVE BEEN GIVEN THE INFORMATIONTHAT HE WAS KNOWINGLY VIOLATING THE ACT AND HE WOULD HAVE BEEN ABLE TO PLEAD THE FI FTH AND HE WAS IN A WAY BACKED INTO A CORNER BY THE STATE, SINCE THEY NEVER TOLD HIM HE WAS A T ARGET UN TIL AFTER THEY GOT THE INFORMATION THEY WANTED.

CHIEF JUSTICE: IT SOUND S LIKE YOU ARE ALLEGING SOME T YPE OF LACK OF GOOD FAITH. WAS THAT R AISED BELOW , THAT IS THAT, THE FACT THAT THE STATE WAS NOT ACTING IN GOOD FAITH WHEN THEY, T RYING TO OBTAIN THIS INFORMATION?

ACTUALLY , YOUR HONOR , I BELIEVE THAT THE RECORD DOES NOT GIVE ANY CONSTITUTIONAL ANALYSIS ON BEHA LF OF MY CLIENT THAT SHOWS THAT THE STATE WAS SEE KING INFORMATION NOT IN GOOD FAI TH. FOR EXAMPNECESSARILY THE SECOND PRONG, WHICH IS ALSO NOT PROVEN , DOES NOT MEET THE STANDARDS OF THIS C ASE , IS THAT THERE ARE PLENTY OF ALTERNATIVE SOURCES THAT THE STATE SHOULD HAVE LOOKED INTO, BEFORE ZONING IN ON MY CLIENT, ONCE AGA IN, AND FORCING HIM TO UNWILLINGLY REVEAL HIS SOURCE.

CHIEF JUSTICE: WHAT OTHER SOU RCE , I AM NOT CLEAR THEN , WHAT ARE , WHAT ARE THE SOURCES THAT THEY COULD HAVE OBTAINED, THAT THE ALTERNATIVE SOURCES OF INFORMATION , OTHER THAN GETTING IT F ROM THE REPORTER ?

WELL , FIRST , YOUR HONOR , IT WAS OBVIOUS THAT OTHER REPORTERS HAD THE INFORMATION , SI NCE THEY HAD ALREADY QUESTIONED TERRYLANE AND SHE WAS BEING HELD -- CHIEF SAYING THEY ARE ALL REPORTERS, THEY ALL HAVE THE S AME PRIVILEGE, SO I AM NOTSURE THAT HEL PS YOU VERY MUCH. IT SEEMS TO ME IT WOULD HAVE TO BE A SOURCE OUTS IDE OF THE OTHER REPORTERS, BEFORE IT WOULD BE , MEET ONE OF THE PRONGS OR FAI L TO MEET ONE OF THE PRON GS .

THE EDITORIAL BOARD P ASSED THROUGH ALL OWING THE PUB CHATION OF THE P HOTO -- PUBLICATION OF THE PHOTO, THE PHO TO AT HA ND , AND THE STATE NEVER REALLY GOT ACHANCE TO LOOK INTO OTHER REPORTERS. S INCE JAMIE OLSEN --

CHIEF JUSTICE: YOU SEE WHAT I AM SAYING I S ONCE YOU START TO LOOK INTO OTHER REPORTERS , YOU ST ILL HAVE THE SAME ISSUE OF THE FIRST AMENDMENT , AND THE QU ALIFIED PRIVILEGE. I INTERPRETED THAT PRONG AS MEANING THAT THEY COUL D GET THE INFORMATION FR OM OUTSIDEOF THE NEWSPAPER , BECAUSEEVERY TIME YOU ARE DEALINGWITH THE NEWSPAPER, YOU HAVE GOT THE FIRST AMENDMENT ISSUE .

WELL , I SEE YOUR POINT BUT A T THE SAME TIME MAYBE THE OTHER REPORTERS DISCLOSED NO INFORMATION BECAUSE THEY HAD NO CLOSETIES TO THIS CASE , WHE REAS JAMIE OLSEN , THEY FORCED HIM , WHEREAS OTHER REPORTERS MAY HAVE WIL LINGLY , THERE HAVE BEEN CASES WHERE THE FIRST AMENDMENT, WHERE THE REPORTER PRIVILEGE WAS NOTBROUGHT UP AND THEREFORE THE REPORTER WILLINGLY DISC LOSED THEIR SOURCES, BUT AT THE SAME TIME JAMIE OLSEN WAS NEVER GRANTED THAT PRIVILEGE , BECAUSE THEY ONLY LOOK ED AT HIM. THEY DIDN'T LOOK AT ANYONE ELSE. BUT AT THE SAME TIME THERE WERE ALTERNATE SOURCES NOT FROM THE IN NEWS PAPER PUBLATION THAT THEY COULD HAVE GOTTEN THE SOURCE FROM . IN HO RNE , IT WAS FOUND THAT HORNE DID NOT LOOK CLOSEENOUGH TO SEE IF THERE WERE ALTERNATIVE SOURCES AND BECAUSE HE DID NOT PROVE THAT THE INFORMATION HE WASSEEKING FROM THE GADSDEN COUNTY EMPLOYEE WAS UNAVAILABLE , THE COURT FOUND IN FA VOR O F GA DSDEN COUNTY. SINCE THAT COURT WAS BASICALLY IMPOSING THE RESPONSIBILITY ON A PRIVATE CITIZEN , HORNE , T O NOTI FY THAT THERE WERE NO ALTERNATIVE SOURCES, IT IS OBVIOUS THAT THE GOVERNMENT IN THIS CASE HAD THE SAME IF NOT GR EATER OBLIGATION TO DO SO .

JUSTICE: IS YOUR INTERPRETATION OF THE U.S. SUPREME COURT'S HOLD IN G IN BRANSBERG , AS FAR AS WHAT PARAMETERS THE U.S. SUPREME COURT SET OUT IN THAT CASE , THE IMPORTANT PRINCIPLES THAT APPLY HE RE?

WELL , THE IMP ORTANT PRINCIPLES THAT APPLY IS THAT A REPORTER 'S PRIVILEGEIS NOT ABSOLUTE. HOWEVER , IT DOES EXIST , AND IT IS OBVIOUS THAT IT EXISTS, BECAUSE WHILE THE FIRST THREE CASES IN BRANSBERG WERE AFFIRMED, THE LAST ONE , CALDWELL, WAS REVERSED BECAUSE CA LDWELL HAD M ORE SPECIFIC EYEWITNESS TESTIMONY OR SPEC IFIC KNOWLEDGE OF A CERTAIN CRIME , WHEREAS THE OTHER THREECASES , BASICALLY IT JUST CODIFIES THE FACT THAT A CONSTITUTIONAL ANALYSIS MUST BE MAD E IN EVERY SINGLE CASE BEFORE COMPELLING THE REPORTER TO DISCLOSE HIS SOURCE. I AM BASICALLY MO VING BACK TO MY SECOND PRONG , I JUST FOUND THAT THE GOVERNMENT DID NOT SEEK , T R Y AT LEASTTO THE INVESTIGATE ANY OTHERLEADS , BEFORE GOING BACK TO JIM WILLS -- JAMIE OLSEN . VENT LY WITH A TH OROUGH -- EVENTUALLY WITH A THO ROUGH POLICE INVESTIGATION , THEY COULD HAVE FOUND THAT THE SOURCE IT SELF WAS CORRELATED TO THE CASE. THE SOURCE OF THE ARTICLE, THE AR TICLE WASN'T EVEN BASED UPON RODRIGUEZ , THE UNFORTUNATE PERSON WHO WAS MURDERED. IT WAS BASED UPON THE L IFE AFTER SENATOR AND MOST OF THE INFORMATION WASN 'T EVEN ON THE FACT THAT HE WAS ON AN UNDERCOVER AG ENT. IT WAS ON THE WIFE. SO TO GET INFORMATION ON THEWIFE, THE PO LICE COULD HAVE UNDERSTOOD THAT THE REPORTERS MOST LI KELY HAD TO A SK FAM ILY MEMBERS. OTHERWISE , EVEN THE OPPOSING SENATOR , AND MAYBE HIS SENATOR , IF HIS STA FF , WHETHER THEY WOULD HAVE GIVEN INFORMATION AND CA REY LIMBAUGH , THE ACTUAL SOURCE, ACTUALLY EN DED UP BE ING THE PERSON WHO WAS ON THE OPPOSING SENATOR'S STAFF, SO IT WASN'T AS IF THE SOURCE WAS FROM N O WHERE. THE SOURCE WAS ACTUALLY CLOSELY CORRELATED , SO THEPOLICE, IF THEY WOULD HAVE TAKEN TIME TO COMPLETE A THOROUGH INVESTIG ATION , COULD HAVE COME UPON IT THEMSELVES AND WOULD NOTHAVE TO HAVE CORNERED J A IME OLSEN AND COMPELLED THE INFORMATION FROM HIM .

JUSTICE: WHA T IS THE CRITERIA THAT YOU WOULD HAVETO SUPPLY TO DETERMINE WHETHER THIS ELEMENT THAT YOU ARE REFERR ING TO HAVE TOO EARLY IN THE INVESTIGATION , HO W DOES A COURT MA KE THAT DETERMINE NATION? WHAT ARE THE ELEMENTS , AND WHAT WOULD YOU HAVE US DO?

WELL , BASICALLY THE ELEMENTS I WOULD ASK FOR IS THAT THERE ARE ACTUAL FACTS SUPPORTED IN THE CASE THAT SHOW THAT THIS COURT AND THE STATE MADE A FINDING TO AT L EAST MAKE SOME EFFORT TO PROVE THAT JAMIE OLSEN WAS THE ONLY SOURCE OF INFORMATION. HOWEVER , THEY DID NOT , BECAUSE ONCE T E RRY L AN E WAS HELD IN CONTEMPT , THEY WENT STRAIGHT TO JAMIE OLSEN , AND ONCE JAIME OLSEN FAILED , THEY DIDN'T MOVE TO ANYONE ELSE. THEY STARTE D TO COMPEL THE INFORMATION FROM HIM . CHIEF IF WE R ULE IN YOUR FAVOR ON THE ISSUE, HOW DOES THAT HELP YOUR CLIENT'S MURDER CONVICTION? AS YOU SAY , THERE ARE ALTERNATIVE WAYS THAT THE STATE CAN FIND OUT AB OUT THE RELATIONSHIP BETWEEN YOUR CLIENT AND THE VICTIM.

WELL , YOUR HONOR , BASICALLY MY CLIENT WOULD MOST LIKELY BE ASK ING FOR AN ENTIRELY NEW CASE, BECAUSEONCE HE GAVE UP HIS SOURCE , IMMEDIATELY THEREAFTER, THAT IS WHEN THE STATE INDICTED HIM , SO IF HE WOULD HAVE NEVER BEEN ABLE TO COMPEL THE SOURCE, THE STATE WOULDHAVE HAD T O LOOK FOR ALTERNATIVE WAYS T O CONNECTHIM WITH THE MURDER OF JUAN RODRIGUEZ, AND THEREFORE WE ARE ASKING FOR A W H OLE NEWTRIAL , WHER E THE ONLY FACTS AND ELEMENTS THAT MAKE IT FAIR IS THAT , THE ONLY FACTS AND ELEMENTS THAT THEY APPLY ARE ONES THAT WERE FAIR AND JUST TOWARDS MY CLIE NT. HE WAS NOT INDICTED BASED ON BEING COMPELLED AND TAKEN AWAY HIS FIRST AMENDMENT RIGHTS.

CHIEF JUSTICE: SO YOU WOULD HAVE AN OTHER TR IAL, WITHOUT ANY OF THE INFORMATION THAT WAS GA INED THROUGH THIS SUBPOENA?

YES .

CHIEF JUSTICE: BUT HAS THAT EVER BEEN DONE AS REMEDY FOR A V I OLATION OF A QUALIFIED PRIVILEGE , THAT IS REVERSING A CONVICTION ?

ACTUALLY , YOUR HONOR , I AM NOT A WARE . IT IS , MY TIME IS ALMOST UP. I WOULD LIKE TO BRIEFLY ASK THIS COURT TO REVE RSE THE L OWER COURT'S DECISION , AND THANK YOU AND I WILL TURN THE PODIUM O VER.

CHIEF JUSTICE: THANK YOU.

MAY IT PLEASE THE COURT. GOOD AFTERNOON. M Y NAME IS JESSICA BOUIS. I WILL BE ADDRESSING THE ISSUE OF THE UNCONSTITUTIONAL ENHA NCEMENT OF JAIME OLSEN'S SENTENCE.THE APPELLATE COURT RECOGNIZED THE UNCONSTITUTIONALITY OF THESENTENCE AND REVERSED IT. IT DOES NOT INF ERENCE THAT THE JURY'S GUILTY VER DICT IMPLIES THE NEGLIGENT US E OF THE PR ESS. HOWEVER , THE NEG LIGENT USEOF THE PRESS IS NOT A PROOF OF MURDER AND THEREF ORE NOT REQUESTED IN THE JURY VERDICT.TO CONTINUE TO AR GUE TO INCREASE THE RESPONDENT'S SENTENCE DOES NOT NE ED TO BE EXPLICITLY STATED BEFORE THECOURT.HOWEVER , THE U.S. SUPREME COURT DE CIDED IN APPR ENDI VERSUS NEW JE RSEY THAT ANY FACTS THAT INCREASE THE PENALTY FOR A CRIME B E YOND THE PRESCRIBED STATUTORY MAXIMUM, MUST BE SUBMITED TO A JURY AND PROVED BEYOND AREASONABLE DOUBT.

JUSTICE: WHY WASN 'T IT OBVIOUS IN THIS CASE THAT THIS IS WHAT THE STATE WAS CLAIMING, THAT THE, OBVIOUSLY THAT THE REPORTER WAS ACTING IN HIS CAPACITY, AND THAT THE WHOLEINVOLVEMENT IN THE CASE IS PREDICATED ON ACTING AS A JOURNALIST , AND SO WHY IS N'T IT JUST SORT OF A COMMONSENSE THI NG THAT IT IS OBVIOUS IN T HIS CASE , THAT THAT IS JUST WHAT THESE CIRCUMSTANCES PRES ENT?

WELL , JUSTICE QUINCE STATED EARLIER , THERE WAS OTHER EVIDENCE POINTING ON JAMIE OLSEN TO B E GIN WITH. ALSO HE WAS NEVER TRIEDUNDER THE CRIMINAL PRESS ACT, AND YOU CAN'T BE SENTENCED FOR AN ACT YOU YOU ARE NOT TRIED UN DER, BECAUSE WE DON'T KNOW HOW MU CH WEIGHT THE JURY GAVE TO THE NEWSPAPER IN CONSIDERING THE EVIDENCE DURING SENT ENCING . ALS O IT IS NOT ENOUGH TO SENTENCE SOMEONE BASED ON ASSUMPTION IN OUR COUNTRY. EVERYONE IS EN TITLED TO A FAIR JURY TRIAL, WHERE ALLOF THE EVIDENCE IS PROVED BEYOND A REASONABLE DOUBT,AND IF THERE IS ANY QUESTION THAT THIS EVIDENCE WASN'T PROVED BEYOND A REASONABLED OUBT IT IS NOT FAIR TO VIOLATE - -

JUSTICE: WHAT COUL D THE STATE HAVE DONE TO ALLOW THE APPLICATION OF THIS ENHANCEMENT OF THE SENTENCE IN THIS CAS E? WHAT WOULD YOU , HOW WOULD YOU HAVE HA D THEM PROCEED?

IF THE STATE HAD ADDRESSED THE JURY AND TOLD THEM TO MAKE A DETERMINATION OF WHETHER OLSEN USED THE NEW SPAPER TO F URTHER HIS C RIME AND ADD RESS THE CRIMINAL PRESS ACT AT TRIAL, THEN, YES , HE SHOULD HAVE BEEN SENTENCED ACCO RDING TO THE CRIMINAL PRESS ACT. IT WAS NEVER BROUGHT UP UNTIL SENTENCING BY THE JUDGE . THE FACT ENHANCEMENTS WERE NEVER SUBM ITED TO A JURY AND NEVER PROVEN BEYOND AREASONABLE DOUBT. THIS RESPONDENT WAS NEVER CONVICTED UNDER THE ACT AND IT SHOULD NOT HAVE BEEN CONSIDERED IN SENTENCING. ADDITIONALLY THE SENTENCER CONTENDS THAT IT DOES NOT UPHOLD THE LE VEL OF THE LAW. I DO NOT F EEL THIS IS POSSIBLE WHEN THIS I S CLEARLY AN ABOMINATION OF THE SI XTH AMENDMENT RIGHTS. PETITIONER ALSO ARGUE APOINT IN THEIR BRIEF. PETITIONER ARGUES THAT BOOKER SUPPORTS THEIR CASE FOR FE DERAL SENTENCING GUIDELINES. HOWEVER, THE SENTENCING GUIDELINES ARE NE ITHER MANDATORY NOR RELEVANT IN THIS CASE. THE U.S. SUPREME COURT IN BLAKELY SAYS THAT THE REASON THAT A JURY TRIAL I S GUARANTEED IN THE CONSTITUTION IS THAT THEY WERE UN WILLING TO TRUST THE GOVERNMENT TO PL AY THE ROLE OF THE JURY. IN THIS CASE SENTENCING DISCRETION SO LONG AS IT IS N OT IMPOSING UPON THE JURY TO FIND FACTS NOT --

JUSTICE: DID THE TRIAL JUDGE RELY ON ANY ADDITIONAL EVIDENCE THAT DIDN'T G O BEFORE THE JURY IN HAVING THIS SENTENCE ENHA NCEMENT? DIDN'T THE TRIAL JU DGE RELY ENTIRELY ON THE PROO F THAT WAS PRESENTED AT THE TRIAL? ANOTHER TRIAL JUDGE DID RELY 'THE EVIDENCE , BUT HE OR SHEWAS AWARE OF DURING TRIAL BUT --

JUSTICE: THE JUDGE DIDN 'TGO OUTSIDE OF THAT, SO WHYWOULDN'T THAT BE APPROPRIATE, THEN, IF THE JUDGE LI MITED HIMSELF TO JUST WHAT EVIDENCE WENT BEFORE THE JURY?

THAT WOULDN'T BE APPROPRIATE, BECAUSE THE CRIMINAL PRESS ACT WAS OUTSIDE OF THE SCOPE OF THETRIAL.THE JURY WAS NEVER AWARE OF THE CRIMINAL PRESS ACT , ASFAR AS WE KN OW IN THE RECORD, AND THE JUDGE SENTENCED JAMIE OLSEN ACCORDING TO THE CRIMINAL PRESS ACT , AT HIS O WN DISCRETION. IN THIS CASE, THE RESP ONDENT 'S SENTENCE WAS INSTEAD ENHANCED UNLAWFULLY , AS THE OWN DISCRE TION OF THE JU DGE. IN BELL VERSUS FLORIDA , ASIMILAR INS TANCE OCCURRED , AND THE DEFE NDANT WAS SENTENCED BASED ON THE FACTS UNNECESSARY TO GAIN HIS CONVICTION. IN THIS CASE , PETITIONERS OFFERED IN THEIR BRIEF THAT HE WAS CONVICTED OF ONE COUNT OF SE XUAL BATTERY BY A CRIMINAL AUTHORITY, TWO COUNTS OF THAT AND ONE COUNT OF SEXUAL BATTERY ON A MINOR. THE SUPREME COURT REVERSED THE ENHANCED SENTENCE BECAUSE PENE TRATION WAS NOTNECESSARILY A FINDING UNDER BOTH COUNTS.

CHIEF JUSTICE: THAT IS WHERE I AM HAVING TR OUBLE , AND I JUST WA NT TO MAKE S U REI UNDERSTAND YOUR ARGUMENT ON, FROM THE STATE'S POINTOF VI EW. THEY ARE SA YING THAT THERE WERE TWO PO SSIBLE BASIS TO CONVICT HIM OF MURDER , SINCE HE WASN'T THE ACTUAL MURDERER. IT EITHER HAD TO BE BECAUSEOF HIS CON NECTION WITH THE VICTIM OR BECAUSE OF THE PUBLICATION OF THE NEWSPAPER ARTICLE. WERE BOTH OF TH OSE ARGUED BY THE STATE AS BASIS TO , REASONS TO CONVICT YOUR CLIENT?

IN THE RECORD, WE DON'T KNOW EXACTLY WHAT THE STATE ARGUED , OTHER THAN WE KNOW THAT THEY RELIED HEAVILY ON THE NEWSPAPER IN THE RECORD , BUT IN THIS CASE , MURDER, IN ORDER TO CONVICT SOMEONE OF MURDER, THERE H A S TO BE INTENT, AND TO CONVICTSOMEONE OF THE CRIMINAL PRESS ACT, WHICH IS WHAT HE WAS SENTENCED ACCO RDING TO , YOU HAVE TO FIND NEGLIGENTUSE OF THE PRESS ANDNEGLIGENT USE OF THE PRESS C ANNOT BE EVIDENT IF THERE IS ALSO INTENT TO COMMIT MURDER, SO SINCE JAMIE OLSEN DID NOT USE , THERE WAS AFINDING OF IN TENT, SO HE COULDN'T HAVE ACTED WITH NEGLIGENCE TO COMMIT A CRIME PERTAINING TO THE NEGLIGENT USE OF THE PRESS AND INSIGHT SOMEONE ELSE TO COMMIT CRIME, I F HE WAS FOUND GUILTY O F MURDER. CHIEF I GUESS WHAT THEY ARE SAYING IS THAT , IF --

CHIEF JUSTICE: I GUESSWHAT THEY ARE SAYING IS THAT , IF YOU INTENTIONALLY D O SOMETHING , WITHIN THAT YOU AT LEAST WERE ALSO NEGLIGENT, SO THAT ONE FINDING INCLUDES THE OTHER. HOW DO YOU, YOU DON'T, YOU SEE THEM AS BEING MUTUALLY EXCLUSIVE?

YES, YOUR HO NOR, AND, ALSO , HE WAS NEVER CONVICTED UNDER THE CRIMINAL PRESS ACTTO BEGIN WITH. THE WHOLE ISSU E IS THAT HEWAS NOT TRIED UNDER THE ACT AND HE WAS STILL A DEFENDANT ACCORDING TO, VIOLATING HIS SIXTH AMENDMENT RIGHT TO DUE PROCESS AND A FAIR TRIAL.

CHIEF JUSTICE: SO HE HAD NO NOTIC E , WHEN WAS THEFIRST TIME THAT HE HAD NOTICE OF THE FACT THEY WERE GOING TO TRY TO SE EK PROSECUTION UNDER THE CRIMINAL PRESS ACT?

I DON'T KNOW EX ACTLY WHEN HE WAS MADE AWARE OF IT , BUT THE JUDGE DECIDED TO ENHANCE HIS SENTENCE AFTER HIS TRIAL , D URING SENTENCING . I AM SO RRY . THAT WAS THE FIRST TIME THAT ON THE RECORD JAIME OLSEN WAS MADE AWARE OF IT .

JUSTICE: SO IS IT CLEAR F ROM THIS RECORD THAT MR . OLSEN WAS NEVER CHARGED WITH ANY OF FENSE UNDER THE , THIS ACT THAT THEY USE FOR ENHANCEMENT ?

IT WAS CLEAR ON THE RECORD THAT JAMIE OLSEN WAS NOT AWARE OF ANY CHARGES MADE AGAINST HIM UNDER THE CRIMINAL PRESS ACT .

JUSTICE: BUT I THINK JUSTICE QUINCE'S QU ESTION WAS , WAS IT IN THE CHARGING INSTRUMENT? WAS IT I N THE INDICTMENT?

THERE IS NO RECORD OF THE CRIMINAL PRESS ACT IN THE CHARGING DOCUMENT. IN THIS CASE. ON BEHALF OF THE RESPONDENT JAMIE OLSEN, MY CO-COUNSEL AND I REQU EST THAT THIS COURT AF FIRM THE LOWER COURT'S REVERSAL OF THE ENHANCEMENT OF THE SENTENCE AND REVERSE THE LOWER COURT'S DECI SION FOR SENTENCE PERTAINING TO THEQUALIFIED REPORTER PRIVILEGE. THANK YOU. CHIEF THANK YOU VERY MUCH. D O WE HAVE --

CHIEF JUSTICE: THANK YOU VERY MUCH. DO WE HAVE REBUTTAL ?

MA Y IT PLEASE THE COURT . JAMIE OLSEN I S AT E MING TO SHIELD HIS CULPABILITY FOR HIS ACTI ONS , BY CL AIMING A PRIVILEGE THAT EXISTS NOT TO PROTECT THE INDIVIDUAL MEMBER OF THE M EDIA BUT TO PROTECT THE FR EE FL OW OF IDEAS. HIS INTE REST IN USING THIS PRIVILEGE IS ME RELY TO ESCAPE CRIMINAL PROSECUTION. FURTHERMORE , JAMIE OLSEN IS SIMULTANEOUSLY --

JUSTICE: IS IT A MERE TECHNICALITY THAT SOMEONE MAY HAVE A CONSTITUTIONAL PROTECTION ON SOMETHING AND THAT IS USED TO ESCAPE? IS THAT REA LLY OUR CRITERIA?

I AM SORRY. CAN YOU REPHRASE YOUR QUESTION.

JUSTICE: YOU SEEM TO BE SAYING HE IS TR YING TO ESCAPE RESPONSIBILITY . IS ONE WHO ASSERTS A V ALID CONSTITUTIONAL PROTECTION , IS THAT HOW WE CHARACTERIZE WHAT THEY ARE TRYING TO DO?

YES , YOUR HONOR , JAIME OLSEN, BY INVOKING HIS PRIVILEGE, WAS MERELY AFT ERHE HAD ALREADY REVE ALED HIS SOURCES , AND THIS WAS ONLY TO T RY T O NOT BE HELD IN CONTEMPT AS WAS TERRY LANE. THE SOURCE L ATER CAME FORWARD , THEMSELVES , CA REY LIMBAUGH TESTIFIED AT THETRIAL , SO AT THAT POINT IT IS NOT NECESSARILY BE HARM THEN TO JAMIE OLSEN, BUT I T DOES EXIST IN THIS C ASE. FURTHERMORE --

CHIEF JUSTICE: CA N YOU ADDRESS THE PRONG THAT THEY SEEM TO RELY ON , THAT ISTHAT THE STATE, BEFORE THEY WERE TRYING TO G ET THE REPORTER SOURCE , SHOULD HAVE GONE ST RAIGHT TO THE M OST OBVIOUS EN TITY , W HICH WAS THE SENATOR WHO WAS OPPOSING THE CAMPAIGN O F THE VICTIM'S W IFE . IN OTHER WORDS TH EY SHOULD HAVE LOOKED FOR ALTERNATIVE SOURCES , BEFORE THEY WE NT TO THE PRESS .

ALTERNATIVE SOURCES AS T O WHO REVEALED THE I DENTITY ?

CHIEF JUSTICE: CORRECT , THAT THAT IS A PRONG THAT YOU HAVE TO ME ET, CORRECT?

YES, IT IS.

CHIEF JUSTICE: WHY ISN'T IT THAT THEY DIDN'T, THEY WENT STRAIGHT TO THE PRESS AS OP POSED TO WENT TO ALTERNATIVE SOURCES?

BECAUSE AT THE SCENE OF THE CRIME , A COPY OF THE NEWSPAPER WAS FOUND THAT REVEALED JUAN RODRIGUEZ , AND ON THIS PHOTOCOPY OR THE P HOTO AND THE PICTURE IN THEPAPER , THERE WAS THE FINGERPRINTS OF THE SHOOVRT SHOOTER , LINKING HIM -- OF THE SHOOTER , LI NKING HIM WITH THE PAPER , AND THEN ONCE THEY WERE INVESTIGATING , IT L ED THEM TO THE SOURCE, THE AR TICLE , WHICH WOULD BE THE ONLY TWO PEOPLE WHO KN EW THE SOURCE WOULD BE TERRYLANE, WHO WAS HELD IN CONTEMPT SO SHE WOULD NOT TESTIFY, AND THEN THAT ONLY L EFT JAMES OLSEN.

CHIEF JUSTICE: WHY IS IT THAT THEY COULD FIND OUT WHO THE SOURCE WAS BY FIGURING OUT WHO HAD A M O TIVE TO REVEAL THIS INFORMATION ?

WHO HAD A MOTIVE?

CHIEF JUSTICE: WHO HAD, I MEAN, ISN'T IT THAT THE SENATOR'S OPPONENT WAS, REALLY, THE SOUR CE OF THIS INFORMATION?

THIS WAS AFTER THE CAMPAIGN HAD ALREADY TRANSPIRED . NO LO NGER WAS , CARE LIMBAUGH WAS NO LON GER AN OPEN -- CAREY LIMBAUGH WAS NO LONGER AN OPPONE NT, AND AT THE TIMEOF THE INFORMATION AND CARE LIMBAUGH , THE INFORMATIONTHAT WAS GI VEN TO JAMIE OLSEN WAS NOT AS A PURPOSETO, AS A CAMPAIGN OPPONENT . IT WAS NOT TO MAKE SENA TOR RODRIGUEZ TO MAKE HER LOOK BAD IN THE PUBLIC'S EYE IN ANY WAY , IN CARE LIMB AUGH 'S -- IN CAREY LIMBAUGH 'S OUTLOOK.

JUSTICE: THE PO LICE WOULD HAVE CONDUCTED AN INVESTIGATION INTO THE CIRCUMSTANCES OF THIS C RIME , CORRECT? AND DEVELO PED INFORMATION ABOUT THE VICTIM AND THE VICTIM'S RELATIONSHIP , SO WHY SHOU LDN'T THE STATE HAVE HAD TO HAVE GONE FURTHER IN ITS ORDINARY INVESTIGATION OF THIS CRIME , BEFORE TURNING TO THE PRESS AS A SOURCE OF INFORMATION?

YES , YOUR HONOR. I AM SORRY . I WAS NOT CL EAR ON THIS BEFORE. AN INVESTIGATION SU CH AS YOU JUST DESCRIBED , WOULD HAVE STILL LED TO JAMIE OLSEN. JAMIE OLSEN IS NOT ONLY -- DOES NOT ONLY O WN STOCK IN THE COMP ANY OF THE SHOOTER , WHICH IS THE COMPANY THAT JUAN RODRIGUEZ WAS ON ASSIGNMENT TO TRY TO DECIDE WHETHER OR NOT THEY WERE TRAFFICKING DRUGS IN FLORIDA , SO REGARDLESS OF HOW THEY DID THE INVEST IGATION , THERE WOULD HAVE STILL BEEN CONNECTION TO SAY JAMIE OLSEN. IN AD DITION , APPRENDI VERSUS NEW J ERSEY , THE , ANY POSSIBLE ERROR THAT COULD HAVE OCCURRED IN A JUDGE ENHANCING THE SENTENCE FOR THAT, DOES NOT EXCEED THE STATUTORY MINIMUM. THE DEFINITION , THE DEFENDANT WAS SENTENCED TO 25 YE ARS , AND THE JUDGE ENHANCED THE FIVE YEARS , FOR A TOTAL OF 30 YEARS , WHICH FOR A MURDER OF THIS FIRST-DEGREE KIND , IS A T LEAST LIGHT IN FLOR IDA. AS SEEN IN STAT UTE 775.082, WHICH CAN BE REASONABLY INFERRED FR OM THE THE INFORMATION IN THE PACK ET. THEREFORE THE STATE H UMBLY ASKS THAT YOU UPHOLD THE R ULING OF THE FI FTH DISTRICT COURT ON THE FIRST ISSUE AND REVERSE ITS R ULING THAT THE SIXTH AMENDMENT RIGHTS OF THE RESPONDENT WERE VIOLATED. THANK YOU. CHIEF THANK YOU VERY MUCH. THE COURT WILL T AKE THIS M ATTER UNDER ADVISEMENT AND BE IN A SHORT RECESS .

MARSHAL: ALL RISE. ,,CHIEF I DON'T WANT YOU TO THINK THAT THE S PEED O F OUR DELIBERATIONS MEANS THAT WE DIDN'T CONSIDER THIS MA TTER SERIOUSLY. WHEN I FIRST SAW THE PROBLEMPUT TOGETHER, I THOUGHT HOW IN THE WORLD WILL HIGH SCHOOL ST UDENT KNOW ABOUTTHIS AREA OF THE LAW THAT I CAN PROBABLY TELL YOU 99 PERCENT OF LAW YERS IN FLORIDA WOULD NOT BE CONVERSEENT IN. THIS WAS A VERY DIFFICULT FACTUAL AND LEGAL QUESTION. I MUST TELL YOU, BECAUSE WE WILL BE ANNOUNCING THE WINNERS TOMORROW, BUT YOU SHOULD KNOW THAT THE DECISION WAS A 4-3 DECISION, WHICH MEANS THAT IT CA N'T BE ANY CL OSER AS TO OTHER THAN MAKING IT A DEAD TIE , WHEN YOU CAN'T HAVE A TIE AS YOUKNOW , WITH SEVEN JUSTICES . I WANT TO THANK THE PARTICIPANTS , THE FINALIST S , AND TOMORROW I WILL HAVE A CHANCE TO T ALK TO ALL OF THE MEMBERS OF THE VARIOUS TEAMS, AS WELL AS THE TEACHERS. IF I COULD , WE HAVE THE TEACHERS FOR THESE TWO TEAMS STAND UP AND BE RECOGNIZED . [APPLAUSE] MAYBE NO W WE CAN REVE AL, BECAUSE WE DON'T KNOW THE TEACHERS. WHAT SCHOOL ARE YOU WITH ? TWO PARTS OF THE STATE. THE RESPONDENT? I THI NK THAT ALL OF YOUFOLLOWED THE REQUIREMENTS THAT IS OF BEING CONVERSANT WITH THE FAC TUAL CIRCUMSTANCES OF THE CASE , BEING CONVERSANT WITH THE LEGAL ANALYSIS. I KNOW AT LEAST ONE OF YOU ACTUALLY REF ERENCE ED , ONE OF YOU ACTUALLY REFERENCED WHAT ANOTHER JUSTICE HAD SA ID IN YOUR ARGUMENT. THESE WERE , AND I THINK THAT WAS TERRIFIC. I KNOW THAT IT CAN'T HE LP BUT FEEL NERV OUS TO BE HERE , AND TO BE IN FRONT OF THE SEVEN MEMBERS OF THE COURT. WE COMMEND YOU FOR YOUR PREPATION.I ALSO WANT TO ACKNOWLEDGE THE OTHER TEAC HERS THAT AREIN THE COURTROOM TO DAY WITH THE TEAMS. IF YOU COULD PLEASE STA NDAND BE RECOGNIZED . [APPLAUSE] IT IS REALLY WONDERFUL FOR US, BECAUSE W E SEE SEVERAL FORMER JTI TEACHERS , AND SO WE KNOW THAT OUR WORK I S BEING WELL DONE. WE HOPE THAT, T H ROUGH THIS EXERCISE, THAT YOU WILL LEARN MORE ABOUT WHAT THE APPELLATE COURTS DO , AND A BOUT CONSTITUTIONAL ISSUES THAT WE FACE EACH AND EVERYDAY, AND KNOW THAT THERE ARE NO E A SY ANSWERS . I THINK THAT , A GAIN , YOU WERE ALL VERY PO ISED . I CAN'T HELP , AS A FE MALE , BUT POINT OUT THAT THE FOUR FINALISTS WERE ALL WO MEN, SO THAT MAKES ME EVEN JUST THRILLED, BECAUSE I CAN TELL YOU 30 YEARS A GO , THERE WERE SO FEW WOM EN THAT WERE ATTORNEYS , AND I , A LSO , I GUESS , LAST BUT NOT LEAST , REALLY NEED TO ACKNOWLEDGE THE P ERSON WITHOUT WHOM THIS WOULD NOT BE POSSIBLE . SOMEBODY WHO IS JUST , SH E IS EVERYWHERE, DOES EVERYTHING AND DOES IT JUST VERY BEST, AND THAT IS ANN ETTE P ITTS OF THE LAW-RELATED EDUCATION ASSOCIATION. [APPLAUSE] THE COURT IS GOING TO BE IN RECESS. JUSTICE ANSTEAD AND JUSTICE WELLS HAVE TO HI T THE ROAD FOR SOME OTHER ENGAGEMENTS THAT THEY HAVE. BUT WE WILL , THE OTHER JUS TICES WILL BE ABLE TO COME OUT AND SPEAK TO YOU IN THE ROTU ND A FOR THE REC EPTION. A GAIN , THANK YOU TO ALL OF THE TEAMS THAT ARE FINALIST S. TRULY YOU ARE ALL WI NNERS , AND THE LEGAL SYSTEM, THE JUSTICE SYST EM IS A WINNER BY YOUR PARTICIPATION IN THIS WAY , ESPECIALLY AT THE AGES THAT EACH OF YOU ARE , AGAIN, I R E MIND THOSE VIEWING THAT YOU ARE WATCHING HIGH SCHOOL STUDENTS . I THINK AT SOME POINT W E PRO BABLY WERE STARTING TO THINK YOU WERE ACTUALLY LAWYERS PRACTICING BEFORE US , SINCE YOU SEE YOU GOT SOME OF THE HARD QUESTIONS THAT THE LAWYERS GET. WE COMMEND YOU ON YOUR PROFESSIONISM AND FOR YOUR WILLINGNESS TO DO THIS, BECAUSE WE KNOW THIS IS AN EXTRACURRICULAR ACTIVITY . CONGRATULATIONS TO THE FIN ALIST S AND TO ALL OF THETEAMS THAT COMP ETED , AND WITH THAT THE COURT WILL BEIN RECE SS. [APPLAUSE]